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Common use of The Controlling Class Representative Clause in Contracts

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause; (vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that provided, that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause; (vii) any release of any performance or “earn-out” reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan mortgage loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any all applicable franchise agreement agreements related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that provided, that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph from the Controlling Class Representative or a Companion Holder, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the CertificateholdersCertificateholders and, if applicable, the Companion Holders, as a collective whole. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, claim suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder or any holder of any a Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder or any holder of any a Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Controlling Class Representatives or any Holder holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder and/or any holder of any a Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or and/or any Holder holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or Class, any holder of a Companion HolderLoan, as the case may be, and and/or that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any holder of a Companion Holder Loan and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder holder of any a Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to (i) the Non-Serviced Mortgage Loans, the holder of the related Companion One & Two International Place Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement Pair and the applicable Non-Serviced Mortgage 000 Xxxx 00xx Xxxxxx Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan)Pair, the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans Loan shall share in all of the rights and responsibilities of the Controlling Class Representative as set forth in Section 2(i) respectively of the related Intercreditor Agreement. (e) Notwithstanding anything , subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the contrary in this Section 6.11 Master Servicer or anything Special Servicer, as applicable, will comply with the provisions therein contained in this connection with taking or refraining from taking the actions described therein, (ii) the Great Wolf Resorts Loan Pair, where the holder of the related Companion Loan is acting as the “Note B Holder” as defined under the related Intercreditor Agreement, with respect the related Note B Holder shall be entitled to exercise the 2007-C30 Serviced Mortgage Loansrights set forth in Section 6(b) of the related Intercreditor Agreement, in the event the 2007-C30 Controlling Class Representative is required to give its consent subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions with respect theretodescribed therein, (iii) the Cabrillo Palisades Loan Pair, where the holder of the related Companion Loan is acting as the “Majority Co-Lender” as defined under the related Intercreditor Agreement, the 2007related Majority Co-C30 Controlling Class Representative Lender or its designee shall be required entitled to confer exercise the rights set forth in Section 4(f) of the related Intercreditor Agreement, subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the Controlling Class Representativeprovisions therein contained in connection with taking or refraining from taking the actions described therein, provided however(iv) the Cadbury Schweppes Loan Pair, that where the holder of the related Companion Loan is acting as the “Note B Holder” as defined under the related Intercreditor Agreement, the related Note B Holder shall be entitled to exercise the rights set forth in Section 3(e) of the event the Controlling Class Representative related Intercreditor Agreement, as supplemented, subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the 2007-C30 Controlling Class Representative are not able to agree upon a course Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein, (v) the Firewheel Corners Shopping Center Loan Pair, where the holder of actionthe related Companion Loan is acting as the “B Note Holder” as defined under the related Intercreditor Agreement, the decision related B Note Holder shall be entitled to exercise the rights set forth in Section 16(a) of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything related Intercreditor Agreement, subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the contrary in this Section 6.11 Master Servicer or anything Special Servicer, as applicable, will comply with the provisions therein contained in this connection with taking or refraining from taking the actions described therein and (vi) each Mezz Cap Intercreditor Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 16 of the Los Angeles International Jewelry Center each Mezz Cap Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (ld) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C17)

The Controlling Class Representative. (a) Subject to Sections 6.11(c)6.12 and 6.13 of this Agreement and the terms of the related Co-Lender Agreement, 6.11(e)in the case of the Serviced Loan Combinations, 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take take, or consent to the applicable Master Servicer taking, any of the following actions as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereofthereof and having received the information reasonably necessary to make an informed decision with respect thereto, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the applicable Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten (10) Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Trust Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than late payment charge and Default Interest provisions) or material non-monetary term of a Trust Mortgage Loan, but excluding a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one (1) year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18)Fund) for less than the related Purchase Price; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any release of collateral (other than funds from Servicing Accounts), or acceptance of substitute or additional collateral or release of material collateral collateral, for a Trust Mortgage Loan unless required by specific conditions with no lender discretion in the underlying loan documentsrelated Trust Mortgage Loan documents and/or applicable law; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance” clause" clause or consent to any transfer or encumbrance where lender discretion is permitted; (vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Trust Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Trust Mortgage Loan documentsDocuments); (viii) any termination of change in the related property manager for Serviced Trust Mortgage Loans having with an outstanding unpaid principal balance in excess of greater than $5,000,000; and (ix) any termination ofchange in franchise for a hospitality Mortgaged Property; provided that if the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders (as a collective whole), it may take such action without waiting for a response from the Controlling Class Representative; and provided, further that the foregoing rights of the Controlling Class Representative shall not relate to (x) a Serviced Pari Passu Loan Combination, the Greensboro Corporate Center Loan Combination or any related REO Property, regarding which the rights and powers of the specified Persons set forth under Section 6.12 or 6.13, as applicable, are instead applicable, or modification of, (y) any applicable franchise agreement related to any Outside Serviced Trust Mortgage Loan secured by a hotelor any related REO Property, regarding which the related Co-Lender Agreement and the relevant Outside Servicing Agreement governs. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions (other than with respect to a Serviced Pari Passu Loan Combination or any related REO Property, or the Greensboro Corporate Center Loan Combination or any related REO Property or an Outside Serviced Loan Combination or any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may (and the applicable Master Servicer or the Special Servicer, as applicable, shall disregard any such direction or objection that would) require or cause such Master Servicer or the Special Servicer to violate any applicable law, any provision of this Agreement, any applicable Co-Lender Agreement or any Trust Mortgage Loan or the REMIC Provisions (and the Special Servicer shall disregard any Provisions, including, without limitation, such direction Master Servicer's or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the applicable Master Servicer, the Special Servicer, the Trust Fund Fund, the Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer applicable Master Servicer's or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the Special Servicer, as the case may be, is not in the best interests of the Certificateholders and, in the case of a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). For the avoidance of doubt, a Master Servicer and/or the Special Servicer shall disregard any direction or objection of any party (including, without limitation, of the Controlling Class Representative) if such direction and/or objection causes such Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement, any applicable Co-Lender Agreement or any Trust Mortgage Loan or the REMIC Provisions or expose such Master Servicer, the Special Servicer, the Trust Fund, the Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of such Master Servicer's or the Special Servicer's responsibility hereunder or cause such Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of such Master Servicer or the Special Servicer is not in the best interest of the CertificateholdersCertificateholders and, in the case of a Serviced Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s) or is inconsistent with the Servicing Standard. Any right to take any action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative under this Agreement may, unless otherwise expressly provided herein to the contrary, be affirmatively waived by the Controlling Class Representative by written notice given to the Trustee or the applicable Master Servicer, as applicable. Upon delivery of any such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative to exercise any such right, make any such election or grant or withhold any such consent shall thereupon be deemed to have expired with the same force and effect as if the specific time period set forth in this Agreement applicable thereto had itself expired. The Controlling Class Representative is hereby authorized to exercise the rights and powers, if any, of the holder of the Mortgage Note for each Outside Serviced Trust Mortgage Loan under the related Co-Lender Agreement (and any corresponding provisions of the related Outside Servicing Agreement), to exercise, either individually or together with the holders of the Companion promissory notes for the related Non-Trust Mortgage Loans, as the case may be, consent rights, consultation rights, rights to direct servicing and rights to replace the related Outside Special Servicer. Promptly following the initial such appointment of a Controlling Class Representative and any subsequent such appointment of a successor Controlling Class Representative with respect to an Outside Serviced Trust Mortgage Loan, the Trustee shall inform the related Outside Servicers and the related Non-Trust Mortgage Loan Noteholders (and consistent from time to time shall ensure that such parties remain similarly informed) that the Controlling Class Representative is entitled, to the full extent permitted under the related Co-Lender Agreement, to exercise such rights and powers, if any, of the holder of the Mortgage Note for the subject Outside Serviced Trust Mortgage Loan under the related Co-Lender Agreement (and any corresponding provisions of the related Outside Servicing Agreement) referred to in the prior sentence, and, further, the Trustee shall take such other actions as may be required under the related Co-Lender Agreement in order to permit the Controlling Class Representative to exercise such rights and powers. The Controlling Class Representative shall for its own account and with its own funds be entitled to exercise the purchase option with respect to, and purchase (i) any AmeriCold Portfolio Non-Trust Mortgage Loan under the circumstances and as contemplated by Section 4.03 of the related Co-Lender Agreement and (ii) the AmeriCold Portfolio Non-Trust Mortgage Loan that constitutes part of the trust fund created pursuant to the AmeriCold Portfolio Outside Servicing Agreement, under the circumstances and as contemplated by Section 3.18(d) of the AmeriCold Portfolio Outside Servicing Agreement. The Controlling Class Representative shall be subject to the same limitations, constraints and restrictions in exercising such rights and powers as would be applicable to the Trustee, in its capacity as holder of the Mortgage Note for the subject Outside Serviced Trust Mortgage Loan. In addition, subject to Section 7.01(c) and each other section hereof that specifically addresses a particular matter with respect to an Outside Serviced Trust Mortgage Loan, if the Trustee is requested to take any action in its capacity as holder of the Mortgage Note for such Outside Serviced Trust Mortgage Loan, pursuant to the related Co-Lender Agreement and/or the related Outside Servicing Agreement, then the Trustee will notify (in writing), and act in accordance with the instructions of, the Controlling Class Representative; provided that, if such instructions are not provided within the prescribed time period, then the Trustee, subject to Sections 8.01 and 8.02, shall take such action or inaction as it deems to be in the best interests of the Certificateholders (as a collective whole) and shall have all rights and powers incident thereto; and provided, further, that the Trustee, with respect to any Outside Serviced Trust Mortgage Loan or the corresponding interest in any related REO Property, (i) shall not be required to take any action that relates to directing or approving any servicing related action under the related Outside Servicing StandardAgreement or the related Co-Lender Agreement, to the extent that the Controlling Class Representative has been notified thereof and has failed to provide instructions with respect to such action within the prescribed time period, and (ii) shall not take any action that is not permitted under applicable law or the terms of the related Co-Lender Agreement or the related Outside Servicing Agreement or any action that is, in the good faith, reasonable discretion of the Trustee, materially adverse to the interests of the Certificateholders (as a collective whole). (b) The Controlling Class Representative, the Controlling Class and the Holder of Representative will not have any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgmentpursuant to this Agreement; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a the Controlling Class Certificateholder Class, which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion Holderof Certificates, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class of Certificates, that the Controlling Class Representative will not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class of Certificates, and that the Controlling Class Representative will not have any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the The Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special ServicerServicer in connection with a Specially Serviced Mortgage Loan, and notwithstanding anything herein and, subject to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a)succeeding paragraph, the Special Servicer will not be permitted to take any of the following actions as to which unless the Controlling Class Representative has objected approved such action in writing within ten Business Days of being having been notified thereof, which notification thereof and having been provided with all reasonably requested information with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer thereto (provided that if such written objection notice has not been received by the Special Servicer within such ten Business Day periodDays, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term monetary term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)Loan; (iii) any actual or proposed sale of an a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18Fund); (iv) any acceptance of a discounted payoff; (v) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials hazardous materials located at an REO Property; (vvi) any release of collateral (other than in accordance with the terms of, or upon satisfaction of, a Mortgage Loan); (vii) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by (other than in accordance with the underlying loan documentsterms of a Mortgage Loan); (viviii) any waiver of a "due-on-sale” clause " or "due-on-encumbrance” clause;" clause (other than in accordance with the terms of a Mortgage Loan); and (viiix) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection accordance with a defeasance permitted under the terms of the applicable a Mortgage Loan documentsLoan); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Upon reasonable request, the Special Servicer shall provide the Controlling Class Representative with any information in this Agreementthe Special Servicer's possession with respect to such matters, including, without limitation, its reasons for determining to take a proposed action; provided that notwithstanding such information shall also be provided, in a written format, to the Trustee, who shall provide a copy thereof to the Master Servicer. (b) Notwithstanding anything herein to the contrary contrary, no advice, direction or anything approval rights provided in this Agreement which permits Section 6.11 (including pursuant to the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by preceding paragraph) may (and the Special ServicerServicer shall ignore and act without regard to any such advice, no such advice direction or directionapproval rights that the Special Servicer has determined in its reasonable, and no objection contemplated by the preceding paragraph may good faith judgment, will) require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Provisions, including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, Standard or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standardhereunder. (bc) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates certificates other than the Controlling Class, and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Class Representative, each Certificateholder agrees to take no action against the Controlling Class Representative or any Companion Holder of its officers, directors, employees, principals or agents as a result of such a special relationship or conflict, and shall that the Controlling Class Representative will not be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any obligations or duties by reason of its having acted solely in the interests of the Controlling Class and that the Controlling Class Representative will have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 1998-C2)

The Controlling Class Representative. (a) Subject to Sections 6.11(c) in the case of the 2006-C23 Serviced Mortgage Loan and Section 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non2006-C23 Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 20072006-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 C23 Controlling Class Representative shall control. (f) Notwithstanding anything be entitled to the contrary in take all actions under this Section 6.11 or anything contained in this Agreement, Agreement with respect to the Los Angeles International Jewelry Center Loan2006-C23 Serviced Mortgage Loan that would otherwise be exercisable by the Controlling Class, the Master Servicer Controlling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in the Prime Outlets Pool Intercreditor Agreement and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor 2006-C23 Pooling and Servicing Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (ld) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this agreement, or special servicer with respect to any Nonthe Brookside West Loan, the Hilton Garden Inn-Serviced Mortgage Napa, CA Loan, The Retreat Apartments Loan and the Weatherly Apartments Loan, the Master Servicer and the Special Servicex xxxxx xomply with Section 16 of each related Intercreditor Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C25)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the The Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a)6.11, the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause clauses (vi) and (viii) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (or a Companion Loan other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18) for less than the outstanding principal balance of the related REO Loan, plus accrued interest (exclusive of Penalty Interest and Additional Interest); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance” clause" clause (other than assumptions) that do not relate to the Burbank Empire Center Mortgage Loan; (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viii) any termination of the determination that an insurance-related property manager for Mortgage Loans having default is an outstanding principal balance of greater than $5,000,000Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and (ix) any termination of, or modification of, any applicable franchise agreement waiver of insurance required under the related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreementherein; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, the terms of any Mortgage Loan, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or Fund, the Trustee or their respective Affiliates, officers, directors, employees or agents the Fiscal Agent to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the The Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be deemed to have been negligent or any Companion Holder reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Controlling Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) . Notwithstanding anything to the contrary in this Section 6.11 or anything any other provision contained in this AgreementAgreement but subject to the Servicing Standard, with respect to any Wachovia AB Mortgage Loan, during such times as the Non-Serviced conditions set forth in the related Intercreditor Agreement have been satisfied and subject to the limitations contained in such Intercreditor Agreement (including without limitation, that no Threshold Event has occurred and is continuing under the related Intercreditor Agreement), the rights of the Controlling Class Representative to control and consent to the servicing and administration of the related Wachovia AB Mortgage LoansLoan set forth in this Agreement (including, without limitation, Section 3.21(d) and Section 6.11) shall not apply with respect to such Wachovia AB Mortgage Loan, but rather the Companion Holder (or, in the case of the Radisson Companion Loan, the holder of the related Companion Loan will Radisson B Note) shall instead have the rights set forth in such Intercreditor Agreement under Sections 4(e) and 4(f) and shall have the right to replace appoint the special servicer with respect Operating Advisor to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as extent set forth in the related Intercreditor Agreement. ; provided, however, that during such times as such conditions are not satisfied (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, including in the event the 2007-C30 Controlling Class Representative that a Threshold Event has occurred and is required to give its consent to any actions with respect theretocontinuing), the 2007-C30 Controlling Class Representative rights of the Companion Holder (including the right to appoint the Operating Advisor) under Sections 4(e) and 4(f)of the Intercreditor Agreement shall not be required effective and the Companion Holder shall not be entitled (during such time) to confer with the Controlling Class Representative, provided however, that in the event exercise such rights and the Controlling Class Representative and during such times shall instead have the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, rights with respect to controlling and consenting to the Los Angeles International Jewelry Center Loan, the Master Servicer servicing and the Special Servicer shall comply with Section 3 administration of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary related Wachovia AB Mortgage Loan set forth in this Agreement (including without limitation, as set forth in Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer 3.21(d) and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Com MRT Pas THR Cert Ser 2002 Mw1)

The Controlling Class Representative. (a) Subject to Sections 6.11(c) through (h), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to (i) the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related 1000 & 1100 Wilson Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related 1000 & 1100 Wilson Loan xxx xhe 1000 & 1100 Wilson Pari Passu Companion Loans Loan shalx xxxxe in the rights and responxxxxxxxxxx of the Controlling Class Representative as set forth in Section 2(i) of the related Intercreditor Agreement; (ii) the Westfield San Francisco Centre Whole Loan, the holders of the Westfield San Francisco Centre Loan and the Westfield San Francisco Centre Pari Passu Companion Loan shall share in the rights and responsibilities of the Controlling Class Representative as set forth in Section 4(m) of the related Intercreditor Agreement and (iii) with respect to the NGP Rubicon GSA Pool Whole Loan, the holders of the NGP Rubicon GSA Pool Loan and the NGP Rubicon GSA Pool Pari Passu Companion Loan shall share in the rights and responsibilities of the Controlling Class Representative as set forth in Section 3.02 of the related Intercreditor Agreement, subject, in each case, to any conditions, restrictions or other provisions described in or incorporated by reference into such section and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein. (d) Notwithstanding anything in this Section 6.11 or anything contained in this Agreement, the Controlling Class Representative shall (i) with respect to the AmericasMart Loan, share all of the rights and responsibilities of the 2005-C19 Controlling Class Representative, as set forth in the AmericasMart Intercreditor Agreement, (ii) with respect to the 101 Avenue of the Americas Loan, share all of the rights and responsibilities of the LB-UBS 2005-C3 Controlling Class Representative as set forth in the 101 Avenue of the Americas Intercreditor Agreement and (iii) with respect to the U-Haul Portfolio Loan, share the rights of the MSCI 2005-HQ6 Operating Advisor as set forth in the U-Haul Portfolio Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage LoansHilton Garden Inn - Staten Island, NY Loan Pair, where the holder of xxx xxxxxxx Xxxxxxxxx Xxxx xx xxxxxx as the "Note B Holder" as defined under the related Intercreditor Agreement, the related Note B Holder shall be entitled to exercise the rights set forth in the event the 2007-C30 Controlling Class Representative is required to give its consent related Intercreditor Agreement, subject to any actions with respect theretoconditions, restrictions or other provisions described in or incorporated by reference into such sections and the 2007-C30 Controlling Class Representative shall be required to confer Master Servicer or Special Servicer, as applicable, will comply with the Controlling Class Representative, provided however, that provisions therein contained in connection with taking or refraining from taking the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall controlactions described therein. (f) Notwithstanding anything any provision in this Agreement to the contrary in this Section 6.11 or anything contained in this Agreementcontrary, with respect to (a) each of the Los Angeles International Jewelry Center LoanMonument I at WorldGate Loan Pair, the Master Servicer Tollway Office Center II Loan Pair and the Special Servicer shall comply with Section 3 Rapp Collins Worldwide Building Loan Pair, where the holder of the Los Angeles International Jewelry Center rexxxxd Xxxxxxion Loan is acting as the "Controlling Holder" as defined under the related Intercreditor Agreement, the related Controlling Holder (or its designee) shall be entitled to exercise the rights set forth in Section 1.03 of the related Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Westfield San Francisco Centre Loan, the Master Servicer and holder of the related Companion Loan will have the right to replace the Special Servicer shall comply with Section 3 respect to the Westfield San Francisco Centre Whole Loan in accordance with the terms of the Lembi Westfield San Francisco Centre Intercreditor Agreement. In addition, with respect to the NGP Rubicon GSA Pool Loan and the 1000 & 1100 Wilson Loan, the holder of the related Companion Loan has the right tx xxxxent to any replacement of the Special Servicer with respect to the NGP Rubicon GSA Pool Whole Loan or the 1000 & 1100 Wilson Whole Loan as applicable, in accordance with the terms of the xxxxxxd Pari Passu Loan Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C20)

The Controlling Class Representative. (a) Subject to Sections 6.11(cSection 6.11(b), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special ServicerServicer with respect to the Trust Mortgage Loans and any REO Properties (other than the Stonestown Mall Loan Combination and any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply), and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a6.11(b), the Special Servicer will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions with respect to the Trust Mortgage Loans and any REO Properties (other than the Stonestown Mall Loan Combination and any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply) as to which the Controlling Class Representative has objected in writing within ten 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clause clauses (vi) and (viii) below shall be copied by the Special Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten 10 Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default; (ii) any modification or consent to a modification of a Money Term material term of a Trust Mortgage Loan (other than excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one year or less)Loan; (iii) any actual or proposed sale of an any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18)) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material real property collateral for any Trust Mortgage Loan, other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan unless required by the underlying loan documentsLoan; (vi) any waiver acceptance of a “due-on-sale” clause substitute or “due-on-encumbrance” clauseadditional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required); (vii) any acceptance waiver of an assumption agreement releasing a Mortgagor from liability under a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viii) any termination releases of earn-out reserves or related letters of credit with respect to a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; andlender, in which case only notice to the Controlling Class Representative will be required); (ix) any termination ofor replacement, or modification ofconsent to the termination or replacement, any applicable franchise agreement related of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required); (x) any determination that an insurance-related default in respect of a Trust Mortgage Loan secured is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and (xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the Controlling Class Representative must object to any such action shall not exceed by a hotelmore than five Business Days the 10 Business Day period the Special Servicer has to object to the applicable Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20. In addition, subject to Section 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding herein. (b) Notwithstanding anything herein to the contrary contrary, no advice, direction or anything in this Agreement which permits objection given or made, or consent withheld, by the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special ServicerRepresentative, no such advice or direction, and no objection contemplated by the preceding paragraph Section 6.11(a) or any other section of this Agreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any applicable law, the terms of any Trust Mortgage Loan, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Agreement, including without limitation such Master Servicer's or the Special Servicer’s 's obligation to act in accordance with the Servicing StandardStandard or the Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or expose REMIC II or otherwise violate the Master ServicerREMIC Provisions or result in an Adverse Grantor Trust Event or result in an adverse tax consequence for the Trust Fund, except that the Controlling Class Representative may advise or direct that the Trust Fund earn "net income from foreclosure property" that is subject to tax with the consent of the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of if the Special Servicer determines that the net after-tax benefit to Certificateholders is greater than another method of operating or net-leasing the Special Servicer’s responsibilities hereunder or cause subject REO Property, (iii) expose the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubtDepositor, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Trustee, any Fiscal Agent or the Trustee or any of their respective Affiliates, directors, officers, directors employees or agents agents, to any claim, suit or liabilityliability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s responsibility 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The applicable Master Servicer or and the Special Servicer is shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the best interest first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the Certificateholders, or proposed actions and has failed to suggest any alternative actions that the holders of the Companion Loan and Special Servicer considers to be consistent with the Servicing Standard. (bc) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will have no duty or liability to the Certificateholders (other than the Controlling Class) for any action taken, or for refraining from the taking of any actionaction pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class or any Companion Holder and Representative shall have no liability whatsoever for by reason of its having so actedacted solely in the interests of the Holders of the Controlling Class, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-3)

The Controlling Class Representative. (a) Subject to Sections 6.11(cSection 6.11(b), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special ServicerServicer with respect to the Trust Mortgage Loans and any REO Properties (other than the 000 00xx Xxxxxx Loan Combination, the Mainsail Loan Combination, the Mall of Louisiana Loan Combination and the North Point Loan Combination and, in each case, any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply), and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a6.11(b), the Special Servicer will not be permitted to take (or permit the applicable Master Servicer to take) any of the following actions with respect to the Trust Mortgage Loans and any REO Properties (other than the 000 00xx Xxxxxx Loan Combination, the Mainsail Loan Combination, the Mall of Louisiana Loan Combination and the North Point Loan Combination and, in each case, any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply) as to which the Controlling Class Representative has objected in writing within ten 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clause clauses (vi) and (viii) below shall be copied by the Special Servicer to the applicable Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten 10 Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default; (ii) any modification or consent to a modification of a Money Term material term of a Trust Mortgage Loan (other than excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one year or less)Loan; (iii) any actual or proposed sale of an any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18)) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material real property collateral for any Trust Mortgage Loan, other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan unless required by the underlying loan documentsLoan; (vi) any waiver acceptance of a “due-on-sale” clause substitute or “due-on-encumbrance” clauseadditional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required); (vii) any acceptance waiver of an assumption agreement releasing a Mortgagor from liability under a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viii) any termination releases of earn-out reserves or related letters of credit with respect to a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; andlender, in which case only notice to the Controlling Class Representative will be required; (ix) any termination ofor replacement, or modification ofconsent to the termination or replacement, any applicable franchise agreement related of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required); (x) any determination that an insurance-related default in respect of a Trust Mortgage Loan secured is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and (xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the Controlling Class Representative must object to any such action shall not exceed by a hotelmore than five Business Days the 10 Business Day period the Special Servicer has to object to the applicable Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20. In addition, subject to Section 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding herein. (b) Notwithstanding anything herein to the contrary contrary, no advice, direction or anything in this Agreement which permits objection given or made, or consent withheld, by the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special ServicerRepresentative, no such advice or direction, and no objection contemplated by the preceding paragraph Section 6.11(a) or any other section of this Agreement, may (i) require or cause the applicable Master Servicer or the Special Servicer to violate any applicable law, the terms of any Trust Mortgage Loan, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Agreement, including without limitation such Master Servicer's or the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund Standard or the Trustee Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or their respective Affiliates, officers, directors, employees REMIC II or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to otherwise violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the applicable Master Servicer, the Special Servicer, the Trust Fund, the Paying Trustee, any Fiscal Agent or the Trustee or any of their respective Affiliates, directors, officers, directors employees or agents agents, to any claim, suit or liabilityliability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the applicable Master Servicer’s 's or the Special Servicer’s responsibility 's responsibilities hereunder or (v) cause the applicable Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The applicable Master Servicer or and the Special Servicer is shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the best interest first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the Certificateholders, or proposed actions and has failed to suggest any alternative actions that the holders of the Companion Loan and Special Servicer considers to be consistent with the Servicing Standard. (bc) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will have no duty or liability to the Certificateholders (other than the Controlling Class) for any action taken, or for refraining from the taking of any actionaction pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class or any Companion Holder and Representative shall have no liability whatsoever for by reason of its having so actedacted solely in the interests of the Holders of the Controlling Class, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2006-C1)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the The Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a)6.11, the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer thereof (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term monetary term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less);; 156 (iii) any actual or proposed sale of an a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18Fund); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documentsLoan; (vi) any waiver of a "due-on-sale” clause " or "due-on-encumbrance" clause;; and (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreementherein; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Provisions, including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the The Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates; and, that absent willful misfeasance, bad faith or negligence on the Controlling Class, the Controlling Class Representatives or any Holder part of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event agrees to take no action against the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon or any of its officers, directors, employees, principals or agents as a course result of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 such a special relationship or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.conflict. 157

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the Smithfield Mortgage Loan, 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause;; and (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreementherein; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, Representative or the Controlling Class and the Smithfield Companion Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, Representative or the Controlling Class and the Smithfield Companion Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, Class Representative or the Controlling Class Representatives or any Smithfield Companion Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and or the Smithfield Companion Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, Class Representative or the Controlling Class Representatives or any Smithfield Companion Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any the Smithfield Companion Holder, as the case may be, and that the Controlling Class Representatives do Representative or the Smithfield Companion Holder does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any itself, as the case may be, that the Controlling Class Representative or the Smithfield Companion Holder shall not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class or itself, as the case may be, and that the Controlling Class Representative or the Smithfield Companion Holder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives Representative or any the Smithfield Companion Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this and subject to the Smithfield Intercreditor Agreement, with respect to actions to be taken related to the Non-Smithfield Loan Pair: (i) Subject to clause (c)(ii) below, prior to the Special Servicer taking any action specified in Section 6.11(a), the Special Servicer shall provide written notice of its proposed action to the Smithfield Companion Holder, and the Smithfield Companion Holder shall have ten Business Days after having been notified thereof, to object in writing to such action (it being understood and agreed that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Smithfield Companion Holder's approval will be deemed to have been given); provided, however, the Smithfield Companion Holder hereby agrees that, in the event the Smithfield Loan Pair is a Specially Serviced Mortgage LoansLoan and the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders and the Smithfield Companion Holder (as a collective whole), the holder Special Servicer may take any such action without waiting for the Smithfield Companion Holder's response; (ii) If the Smithfield Trigger Event shall not have occurred and be continuing, then (A) the Controlling Class Representative shall not be authorized to exercise any of the related Companion Loan will have the right to replace the special servicer its rights and powers provided for in Section 6.11(a) with respect to the related Whole Smithfield Loan in accordance with Pair, and (B) the terms Smithfield Companion Holder will have the rights and obligations of the related Intercreditor Agreement Controlling Class Representative specified in Sections 6.11(a) and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer 6.11(c)(i) with respect to the related Whole Loan, in accordance with Smithfield Loan Pair to direct the terms of the related Intercreditor Agreement. (d) Special Servicer. Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan6.11(c), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of not be obligated to seek approval from the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything Smithfield Companion Holder for any actions to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with be taken by the Special Servicer with respect to any Mortgage Loanthe Smithfield Loan Pair if: (A) the Special Servicer has, or special servicer as provided herein, notified the Smithfield Companion Holder in writing of various actions the Special Servicer proposes to take with respect to the workout or liquidation of the Loan Pair; and (B) for 60 days following the first such notice, the Smithfield Companion Holder has objected to all of those proposed actions and has failed to suggest any Non-Serviced Mortgage Loanalternative actions that the Special Servicer considers to be consistent with the Servicing Standard.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2)

The Controlling Class Representative. (a) Subject to Sections 6.11(c) in the case of the [__________] Loan and Section 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause; (vii) any release of any performance or “earn-out” reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole [__________] Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 [__________] Controlling Class Representative shall control. (f) Notwithstanding anything be entitled to the contrary in take all actions under this Section 6.11 or anything contained in this Agreement, Agreement with respect to the Los Angeles International Jewelry Center Loan[__________] Loan that would otherwise be exercisable by the Controlling Class, Controlling Class Representative or the Master Servicer Majority Subordinate Certificateholder, pursuant to the procedures set forth in the [__________] Intercreditor Agreement and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor [__________] Pooling and Servicing Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (ld) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the 175 West Jackson Loan, 6.11(e)Section 6.11(d) in the case of the 180 Maiden Xxxx Xxxx xxx Xxxxxxx 0.11(e) in the case of each of the oxxxx Xxxxxxxxx Loans, 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan mortgage loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement agreements related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. In addition, with respect to any action for which the Special Servicer is required to seek the consent of the Controlling Class Representative under Section 6.11(a) and which is related to the Thousand Oaks Loan and in each instance subject to Section 6.11(g) of this Agreement, the Thousand Oaks Representative shall have non-binding consultation rights with the Special Servicer during the time frames that the Special Servicer is required to seek the consent of the Controlling Class Representative with respect to such actions. Such non-binding consultation rights include, without limitation, the right to prepare and send to the Special Servicer for consideration by the Special Servicer one or more written proposals related to any such action. (b) The Controlling Class Representative, the Controlling Class Class, the Thousand Oaks Representative and the Holder of any Companion Loan Holders will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Companion Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Controlling Class Representatives Representatives, the Thousand Oaks Representative or any Companion Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative, the Thousand Oaks Representative and the Holder of any Companion Loan Holder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or Representatives, the Thousand Oaks Representative and any Companion Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class, the Holders of the Class EH Certificates, the Holders of the Class TO Certificates or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class (or the Class EH Certificates, as the case may be) or in the case of the Thousand Oaks Representative, the Class TO Certificates, or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives Representatives, the Thousand Oaks Representative or any Companion Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loansuntil a 175 West Jackson Control Appraisal Period shall have occurred and be xxxxxxxxxx, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan xxx Controlling Class Representative shall not have the right to consent or object to any replacement of actions pursuant to Section 6.11(a); provided, that if a 175 West Jackson Control Appraisal Period shall have occurred and be xxxxxxxxxx, xxxx the special servicer Controlling Class Representative and the 2004-C15 Controlling Class Representative shall be entitled to take all actions under this Agreement with respect to the related Whole Loan175 West Jackson Loan that would otherwise be exercisable by the Contxxxxxxx Xxxxx, Xontrolling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in accordance with the terms of 175 West Jackson Intercreditor Agreement and the related Intercreditor Agreement2004-C15 Pooling and Servicinx Xxxxxment. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loansuntil a 180 Maiden Lane Control Appraisal Period shall have occurred and be cxxxxxxxxx, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 xxx Controlling Class Representative shall be required not have the right to confer with the Controlling Class Representative, provided howeverconsent or object to actions pursuant to Section 6.11(a); provided, that in the event if a 180 Maiden Lane Control Appraisal Period shall have occurred and be cxxxxxxxxx, xxxx the Controlling Class Representative and the 20072004-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 C15 Controlling Class Representative shall controlbe entitled to take all actions under this Agreement with respect to the 180 Maiden Lane Loan that would otherwise be exercisable by the Contrxxxxxx Xxxxx, Xontrolling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in the 180 Maiden Lane Intercreditor Agreement and the 2004-C15 Pooling and Xxxxxxxxx Xxxxxment. (fe) Notwithstanding anything any provision in this Agreement to the contrary in this Section 6.11 or anything contained in this Agreementcontrary, with respect to (a) each of the Los Angeles International Jewelry Center Loan17 Battery Place Loan Pair and the 900 Fourth Avenue Loan Pair, where the holder of the related Companiox Xxxx xx xxxxxx as the "Controlling Holder" as defined under the related Intercreditor Agreement, the related Controlling Holder (or its designee) shall be entitled to exercise the rights set forth in Section 3(h) of the related Intercreditor Agreement, subject in each case to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein, (b) each Mezz Cap Intercreditor Agreement, the Master Servicer and and/or the Special Servicer shall comply with Section 3 16 of each Mezz Cap Intercreditor Agreement and (c) the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool AON Office Building Loan, the Master Servicer and and/or the Special Servicer shall comply with Section 3 1.03 of the Lembi Pool AON Office Building Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (lf) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan. (g) Notwithstanding anything in this Agreement contained to the contrary and for the avoidance of doubt and subject to the last paragraph of Section 3.21(d), or special servicer with respect to any Nonactions affecting the Thousands Oaks Loan, if the Controlling Class Representative and the Thousand Oaks Representative do not agree on how to advise or direct the Special Servicer, after the non-Serviced Mortgage Loanbinding consultation as provided for under this Agreement, the determination of the Controlling Class Representative shall control.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C16)

The Controlling Class Representative. (a) Subject to Sections 6.11(cSection 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause;; and (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicercontrary, no such advice or direction, and no objection contemplated by the preceding paragraph from the Controlling Class Representative or a Companion Holder, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan. (d) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, or special servicer with respect to the 0000 Xxxxxx Xxxxxx Loan Pair, where the holder of the related Companion Loan is acting as the “Note B Holder” as defined under the related Intercreditor Agreement, the related Note B Holder shall be entitled to exercise the rights set forth in the related Intercreditor Agreement, subject to any Non-Serviced Mortgage conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein, in addition notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 0000 Xxxxxx Xxxxxx Loan Pair, where the holder of the related subordinate loan is acting as the “Subordinate Lender” as defined under the 0000 Xxxxxx Xxxxxx Subordinate Intercreditor Agreement, the Subordinate Lender shall be entitled to exercise the rights set forth in the related Subordinate Intercreditor Agreement, subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Caplease Loan, where the holder of the Caplease Companion Loan is acting as the “Note B Holder” as defined under the Caplease Intercreditor Agreement, the related Note B Holder shall be entitled to exercise the rights set forth in Section 3 of the Caplease Intercreditor Agreement, so long as a Caplease Control Appraisal Event has not occurred and subject to any conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Mezz Cap Intercreditor Agreement, the Master Servicer and Special Servicer shall comply with Section 16 of the Mezz Cap Intercreditor Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C24)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the The Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a)6.11, the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer thereof (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term monetary term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an a defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18Fund); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documentsLoan; (vi) any waiver of a "due-on-sale” clause " or "due-on-encumbrance" clause;; and (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreementherein; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Provisions, including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the The Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates; and, that absent willful misfeasance, bad faith or negligence on the Controlling Class, the Controlling Class Representatives or any Holder part of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event agrees to take no action against the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon or any of its officers, directors, employees, principals or agents as a course result of action, the decision of the 2007-C30 Controlling Class Representative shall controlsuch a special relationship or conflict. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan. (d) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, or special servicer with respect to the Lake Sweetwater Apartments Loan, the Putnam Place Loan and the Key Plaza Loan, the Master Servicer and Spexxxx Xervicer shall comply with Section 16 of each related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the One Grumman Road West Loan Pair, where the holder of the related Companion Loan is acting as the "Note B Holder" as defined under the related Intercreditor Agreement, the related Note B Holder shall be entitled to exercise the rights set forth in the related Intercreditor Agreement, subject to any Non-Serviced Mortgage conditions, restrictions or other provisions described in or incorporated by reference into such sections and the Master Servicer or Special Servicer, as applicable, will comply with the provisions therein contained in connection with taking or refraining from taking the actions described therein. (f) Notwithstanding any provision in this Agreement to the contrary, with respect to the Tiffany Building Loan Pair, where the holder of the related Companion Xxxx xs acting as the "Controlling Holder" as defined under the related Intercreditor Agreement, the related Controlling Holder (or its designee) shall be entitled to exercise the rights set forth in Section 1.03 of the related Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Hyatt Center Loan, the holder of the related Companion Loan will have the right to replace the Special Servicer with respect to the Hyatt Center Whole Loan in accordance with the terms of the Hyatt Center Intercreditor Agreement. In addition, the holder of the Hyatt Center Pari Passu Companion Loan has the right to consent to any replacement of the Special Servicer with respect to the Hyatt Center Whole Loan, in accordance with the terms of the Hyatt Center Pari Passu Loan Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Hyatt Center Loan, the related holders of the Hyatt Center Loan and the Hyatt Center Pari Passu Companion Loan shall share in the rights and responsibilities of the Controlling Class Representative as set forth in Section 2(i) of the related Intercreditor Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C22)

The Controlling Class Representative. (a) Subject to Sections 6.11(c)6.12, 6.11(e)6.13, 6.11(f)and 6.14 of this Agreement and the terms of the related Co-Lender Agreement, 6.11(g)in the case of the One World Financial Center Loan Combination and the Serviced Pari Passu Loan Combinations, 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten (10) Business Days of being notified thereofthereof and having received the information reasonably necessary to make an informed decision with respect thereto, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the applicable Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten (10) Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Trust Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than late payment charge and Default Interest provisions) or material non-monetary term of a Trust Mortgage Loan, but excluding a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one (1) year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18)Fund) for less than the related Purchase Price; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any release of collateral, or acceptance of substitute or additional collateral or release of material collateral collateral, for a Trust Mortgage Loan unless required by specific conditions with no lender discretion in the underlying loan documentsrelated Trust Mortgage Loan documents and/or applicable law; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance” clause" clause or consent to any transfer or encumbrance where lender discretion is permitted; (vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Trust Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Trust Mortgage Loan documentsDocuments); (viii) any termination of change in the related property manager for Serviced Trust Mortgage Loans having with an outstanding unpaid principal balance in excess of greater than $5,000,000; and (ix) any termination ofchange in franchise for a hospitality Mortgaged Property; provided that if the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders (as a collective whole), it may take such action without waiting for a response from the Controlling Class Representative; and provided, further that the foregoing rights of the Controlling Class Representative shall not relate to (x) a Serviced Pari Passu Loan Combination or any related REO Property, regarding which the rights and powers of the specified Persons set forth under Section 6.12 or 6.13, as applicable, are instead applicable, (y) the One World Financial Center Loan Combination or any related REO Property, regarding which the rights and powers of the specified Persons set forth under Section 6.14 are instead applicable, or modification of, (z) any applicable franchise agreement related to any Outside Serviced Trust Mortgage Loan secured by a hotelor any related REO Property, regarding which the related Co-Lender Agreement and the relevant Outside Servicing Agreement governs. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions (other than with respect to a Serviced Pari Passu Loan Combination or any related REO Property, the One World Financial Center Loan Combination or any related REO Property or an Outside Serviced Loan Combination or any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may (and the applicable Master Servicer or the Special Servicer, as applicable, shall disregard any such direction or objection that would) require or cause such Master Servicer or the Special Servicer to violate any applicable law, any provision of this Agreement or any Trust Mortgage Loan or the REMIC Provisions (and the Special Servicer shall disregard any Provisions, including, without limitation, such direction Master Servicer's or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the applicable Master Servicer, the Special Servicer, the Trust Fund Fund, the Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer applicable Master Servicer's or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the Special Servicer, as the case may be, is not in the best interests of the Certificateholders. For the avoidance of doubt, a Master Servicer and/or the Special Servicer shall disregard any direction or objection of any party (including, without limitation, of the Controlling Class Representative) if such direction and/or objection causes such Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or any Trust Mortgage Loan or the REMIC Provisions or expose such Master Servicer, the Special Servicer, the Trust Fund, the Certificate Administrator or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of such Master Servicer's or the Special Servicer's responsibility hereunder or cause such Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of such Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, Certificateholders or the holders of the Companion Loan and consistent is inconsistent with the Servicing Standard. Any right to take any action, grant or withhold any consent or otherwise exercise any right, election or remedy afforded the Controlling Class Representative under this Agreement may, unless otherwise expressly provided herein to the contrary, be affirmatively waived by the Controlling Class Representative by written notice given to the Trustee or the applicable Master Servicer, as applicable. Upon delivery of any such notice of waiver given by the Controlling Class Representative, any time period (exclusive or otherwise) afforded the Controlling Class Representative to exercise any such right, make any such election or grant or withhold any such consent shall thereupon be deemed to have expired with the same force and effect as if the specific time period set forth in this Agreement applicable thereto had itself expired. (b) The Controlling Class RepresentativeRepresentative is hereby authorized to exercise the rights and powers, if any, of the holder of the Mortgage Note for each Outside Serviced Trust Mortgage Loan under the related Co-Lender Agreement (and any corresponding provisions of the related Outside Servicing Agreement), to exercise, either individually or together with the holders of the promissory notes for the related Non-Trust Mortgage Loans, as the case may be, consent rights, consultation rights, rights to direct servicing and rights to replace the related Outside Special Servicer. Promptly following the initial such appointment of a Controlling Class Representative and any subsequent such appointment of a successor Controlling Class Representative with respect to an Outside Serviced Trust Mortgage Loan, the Trustee shall inform the related Outside Servicers and the related Non-Trust Mortgage Loan Noteholders (and from time to time shall ensure that such parties remain similarly informed) that the Controlling Class Representative is entitled, to the full extent permitted under the related Co-Lender Agreement, to exercise such rights and powers, if any, of the holder of the Mortgage Note for the subject Outside Serviced Trust Mortgage Loan under the related Co-Lender Agreement (and any corresponding provisions of the related Outside Servicing Agreement) referred to in the prior sentence, and, further, the Trustee shall take such other actions as may be required under the related Co-Lender Agreement in order to permit the Controlling Class Representative to exercise such rights and powers. The Controlling Class Representative shall be subject to the same limitations, constraints and restrictions in exercising such rights and powers as would be applicable to the Trustee, in its capacity as holder of the Mortgage Note for the subject Outside Serviced Trust Mortgage Loan. In addition, subject to Section 7.01(c) and each other section hereof that specifically addresses a particular matter with respect to an Outside Serviced Trust Mortgage Loan, if the Trustee is requested to take any action in its capacity as holder of the Mortgage Note for such Outside Serviced Trust Mortgage Loan, pursuant to the related Co-Lender Agreement and/or the related Outside Servicing Agreement, then the Trustee will notify (in writing), and act in accordance with the instructions of, the Controlling Class Representative; provided that, if such instructions are not provided within the prescribed time period, then the Trustee, subject to Sections 8.01 and 8.02, shall take such action or inaction as it deems to be in the Holder best interests of the Certificateholders (as a collective whole) and shall have all rights and powers incident thereto; and provided, further, that the Trustee, with respect to any Companion Outside Serviced Trust Mortgage Loan or the corresponding interest in any related REO Property, (i) shall not be required to take any action that relates to directing or approving any servicing related action under the related Outside Servicing Agreement or the related Co-Lender Agreement, to the extent that the Controlling Class Representative has been notified thereof and has failed to provide instructions with respect to such action within the prescribed time period, and (ii) shall not take any action that is not permitted under applicable law or the terms of the related Co-Lender Agreement or the related Outside Servicing Agreement or any action that is, in the good faith, reasonable discretion of the Trustee, materially adverse to the interests of the Certificateholders (as a collective whole). (c) The Controlling Class Representative will not have no any liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgmentpursuant to this Agreement; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a the Controlling Class Certificateholder Class, which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion Holderof Certificates, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class of Certificates, that the Controlling Class Representative will not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class of Certificates, and that the Controlling Class Representative will not have any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the The Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a)6.11, the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten five Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten five Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification or waiver of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any proposed or actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; and (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreementherein; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, any term of a Mortgage Loan, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, a Mortgage Loan Seller, the Trust Fund or Fund, the Paying Agent, the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or Certificateholders and the Special Servicer will disregard neither follow any such direction or objection of any party (including without limitation of if given by the Controlling Class Representative nor take or a Companion Holder) if refrain from taking such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) actions. The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will have no liability to the Certificateholders any Certificateholder other than a Controlling Class Certificateholder for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class action and the Holder of any Companion Loan will not be protected against any have no liability to a any Controlling Class Certificateholder except liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class Representative shall not be deemed to have been negligent or any Companion Holder reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Controlling Class Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union National Bank Com Mort Pas THR Cert Ser 2002 C1)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the 11 Madison Avenue Loan, Section 6.11(d) in the case of the Starrett-Lxxxxx Xxxxxxxx Xxxx xxx Xxxxxxx 6.11(e)) in the case of the Cedarbrook Apartments Loan, 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viii) with respect to the Starrett-Lehigh Building Whole Loan, any termination acceptance of a discounted payoff; (ix) with respect to the Starrett-Lehigh Building Whole Loan, any renewal or replacement of the then existing insurance policies to the extent that such renewal or replacement policy does not comply with the terms of the mortgage loan documents or any waiver, modification or amendment of any insurance requirements under the related mortgage loan documents; (x) with respect to the Starrett-Lehigh Building Whole Loan, any approval of a material capital expenditure; (xi) with respect to the Starrett-Lehigh Building Whole Loan, any replacement of the property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000manager; and (ixxii) any termination of, or modification ofwith respect to the Starrett-Lehigh Building Whole Loan, any applicable franchise agreement adoption or approval of a plan in bankruptcy of the related to any Mortgage Loan secured by a hotelMortgagor. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph paragraph, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative, Starrett-Lehigh Building Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, claim suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, Neither the Controlling Class and Representative nor the Holder of any Companion Loan Starrett-Lehigh Building Representative will have no any liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that neither the Controlling Class Representative, Representative nor the Controlling Class and the Holder of any Companion Loan Starrett-Lehigh Building Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Controlling Class Representatives or Representative, any Holder holder of a Companion Loan Loan, the Holder of the Class SL Certificates and/or the Starrett-Lehigh Building Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and Representative, any holder of a Companion Loan, the Holder of any Companion Loan the Class SL Certificates and/or the Starrett-Lehigh Building Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or Representative, any Holder holder of a Companion Loan Loan, the Holder of the Class SL Certificates and/or the Starrett-Lehigh Building Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives Representative, any holder of a Companion Loan, the Holder of the Class SL Certificates and/or the Starrett-Lehigh Building Representative do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or itself, as the case may be, that the Controlling Class, the Controlling Class Representative, any holder of a Companion Loan, the Holder of the Class SL Certificates and/or the Starrett-Lehigh Building Representative shall not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class or itself, as the case may be, and that the Controlling Class, the Controlling Class Representative, any holder of a Companion Loan, the Holder of the Class SL Certificates and/or the Starrett-Lehigh Building Representative shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class, the Controlling Class Representatives or Representative, any holder of a Companion Loan, the Holder of any Companion Loan the Class SL Certificates and/or the Starrett-Lehigh Building Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement and subject to the 11 Madison Avenue Intercreditor Agreement, with respect to actions to xx xxxxx xxxxxxx to the Non-Serviced Mortgage Loans11 Madison Avenue Whole Loan, if an 11 Madison Avenue Control Appraisxx Xxxxxx xxxxx xot have occurred anx xx xxxxxxxxxx, then (A) the holder Controlling Class Representative shall not be authorized to exercise any of the related Companion Loan will have the right to replace the special servicer its rights of consent or direction as set forth in Section 6.11(a) with respect to the 11 Madison Avenue Whole Loan, (B) the Special Servicer shall be requixxx (x) xx xxxxxxt with the 11 Madison Avenue Controlling Holder (or the operating advisor appoinxxx xxxxxxx) xx xonnection with (A) any adoption or implementation of a business plan (including without limitation, any operating expense budget or capital expense budget) submitted by the Mortgagor with respect to the Mortgaged Property; (B) the execution or renewal of any lease (if a lender approval is provided for in the applicable loan documents); (C) the release of any escrow held in conjunction with the 11 Madison Avenue Loan to the Mortgagor not expressly required by the xxxxx xx xxx xxxn documents (as defined under the 11 Madison Avenue Loan) or under applicable law; (D) alterations on txx Xxxxxxxxx Xxxxerty if approval by the lender is required by the loan documents; (E) material change in any ancillary loan documents; or (F) the waiver of any notice provisions related Whole to prepayment; (ii) to consult with the 11 Madison Avenue Controlling Holder (or operating advisor, as applicxxxx) (X) xxxx xxe occurrence of any event of default (whether or not cured by an 11 Madison Avenue Companion Holder) with respect to the 11 Madison Avxxxx Xxxx xxx xx consider alternative actions recommendex xx xxx 00 Xxxxxon Avenue Controlling Holder (or operating advisor, as applicxxxx) (X) xxxx xxspect to any determination that an "O&M Operative Period" or a "Designated Lease Curtailment Period" (as such terms are defined under the 11 Madison Avenue Loan) exists under the 11 Madison Avenue Loan, and (X) xx xxx xxxx (whether or not an event of default has occurred) with respect to proposals to take any significant action with respect to the 11 Madison Avenue Loan (including material modifications) or the relaxxx Xxxxxxxxx Xxxperty and to consider alternative actions recommended by the 11 Madison Avenue Controlling Holder (or operating advisor, as applicxxxx) xxx (xxx) xrior to taking any of the following actions, to notify in writing the 11 Madison Avenue Controlling Holder (or operating advisor, as applicxxxx) xx xxx xxxxosal to take any of such actions (and to provide the 11 Madison Avenue Controlling Holder with such information which is rxxxxxxxx xx xxx 01 Madison Avenue Controlling Holder as may be necessary, in the reasxxxxxx xxxxxxxx xf the 11 Madison Avenue Controlling Holder, to make a judgment) and to recexxx xxx xxxxxxx xpproval of the 11 Madison Avenue Controlling Holder (or operating advisor, as applicxxxx) (xxxxx xxxxoval may be given or withheld in such party's sole discretion): (i) any modification or waiver of a monetary term of the 11 Madison Avenue Loan and any modification of, or waiver with xxxxxxx xx, xxx 00 Madison Avenue Loan that would result in the extension of thx xxxxxxxx xxxx xr extended maturity date thereof, a reduction in the interest rate borne thereby or the monthly debt service payment or extension fee payable thereon or a deferral or a forgiveness of interest on or principal of the 11 Madison Avenue Loan or a modification or waiver of any other monetxxx xxxx xx the 11 Madison Avenue Loan relating to the timing or amount of any xxxxxxx xx xxxxxxpal or interest (other than default interest) or any other material sums due and payable under the loan documents or a modification or waiver of any provision of the 11 Madison Avenue Loan which restricts the Mortgagor or its equxxx xxxxxx xxxx xncurring additional indebtedness, any consent to the placement of additional liens encumbering the related Mortgaged Property or the ownership interests in Mortgagor or to the incurring of additional indebtedness at any level or tier of ownership, or any modification or waiver with respect to the obligation to deposit or maintain reserves or escrows or to the amounts required to be deposited therein or any establishment of additional material reserves not expressly provided for in the loan documents on the date hereof; (ii) any modification of, or waiver with respect to, the 11 Madison Avenue Loan that would result in a discounted pay-ofx xx xxx 00 Xxxxxxx Avenue Loan; (iii) commencement or termxxxxxxx xx xxx xxxxxxxxure upon or comparable conversion of the ownership of the related Mortgaged Property or any acquisition of the related Mortgaged Property by deed-in-lieu of foreclosure or otherwise; (iv) any sale of the related Mortgaged Property or any material portion thereof (other than pursuant to a purchase option contained in the 11 Madison Avenue Intercreditor Agreement or in this Agreement) or, xxxxxx, xx xpecifically permitted in the loan documents, the transfer of any direct or indirect interest in Mortgagor or any sale of the 11 Madison Avenue Loan (other than pursuant to a purchase optiox xxxxxxxxx xx xxx 00 Madison Avenue Intercreditor Agreement or in this Agreement); (x) xxx action to bring the related Mortgaged Property or REO Property into compliance with any laws relating to hazardous materials; (vi) any substitution or release of collateral for the 11 Madison Avenue Loan (other than in accordance with the terms xx, xx xxxx xxxxsfaction of, the 11 Madison Avenue Loan); (vii) any release of the Mortgaxxx xx xxx xxxxxxtor from liability with respect to the 11 Madison Avenue Loan; (viii) any substitution of the bxxx xxxxxxx xxx "Central Account" under the 11 Madison Avenue Intercreditor Agreement, unless such bank agrxxx xx xxxxxxx (x) to comply with the terms of Section 3(b)(i)(E) of the 11 Madison Avenue Intercreditor Agreement and (y) to provide to 11 Xxxxxxx Xxxxxe Companion Holder copies of the weekly reconcixxxxxxx xxxxxxxx to be prepared thereunder; (ix) any determination (x) not to enforce a "due-on-sale" or "due-on-encumbrance" clause (unless such clause is not exercisable under applicable law or such exercise is reasonably likely to result in successful legal action by the Mortgagor) or (y) to permit an assumption of the 11 Madison Avenue Loan; (x) any material changes to or wxxxxxx xx xxx xx the "Insurance Requirements" under the 11 Madison Avenue Intercreditor Agreement; (xi) any relexxx xx xxxxx xxxx the "Curtailment Reserve Escrow Account" (pursuant to Section 5.11 of the related Intercreditor Agreement and Mortgage) or the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders "Designated Lease Reserve Escrow Account" (pursuant to Section 5.10 of the related Pari Passu Companion Loan Mortgage) for the application of same to the repayment of the 11 Madison Avenue Loan; provided, however, that (x) the 11 Madixxx Xxxxxx Xxxxxxlling Holder (or operating advisor, as xxxxxxxxxx) xxxxx not have the right to consent to any replacement such release after the occurrence of an event of default (unless the special servicer with respect to the related Whole Loan, 11 Madison Avenue Companion Holder is continuously curing in accordance with the terms of the related acxxxxxxxx xxxx xxx 11 Madison Avenue Intercreditor Agreement. ) and during the contixxxxxx xxxxxxx, xnd (dy) Notwithstanding anything to the contrary in this Section 6.1111 Madison Avenue Controlling Holder (or operating advisor, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (exxxxxxxxxx) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall xxxxx be required to confer with consent to the release of such funds and the application of same to the repayment of the 11 Madison Avenue Loan, if the 11 Madison Avenue Controlling Class RepresentativeHoxxxx (xx xxxxxxxxg advisor, provided however, as xxxxxxxxxx) xxxxxves a letter from any single Rating Agency stating that the failure to release funds from the "Curtailment Reserve Sub-Account" (as defined under the 11 Madison Avenue Loan) and to apply same to the repayment of txx 00 Xxxxxxx Xxxnue Loan will result in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of actiondowngrading, the decision withdrawxx xx xxxxxxxxxxxxx xx any class of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary Certificates or any other securities issued in this Section 6.11 or anything contained in this Agreement, connection with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.securitization;

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)

The Controlling Class Representative. (a) Subject to Sections 6.11(cSection 6.11(d) and (e) in the case of the Non-Serviced Mortgage Loans and Section 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause; (vii) any release of any performance or “earn-out” reserves, escrows or letters of credit, including those listed on Exhibit J; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism or windstorm insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative Representative, the holder of the Class FS Certificates or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class, the holders of the Class FS Certificates and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class, the holders of the Class FS Certificates and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives Representatives, the holders of the Class FS Certificates or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative Representative, the holders of the Class FS Certificates and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives Representatives, the holders of the Class FS Certificates or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class (or the Class FS Certificates) or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan any holder of the Class FS Certificates or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan. (d) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer Special Servicer with respect to the related Whole Loan in accordance with the terms of the related Pari Passu Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer Special Servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (de) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan)Loans, the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in Section 2(i) of the related Pari Passu Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the 11 Madison Loan, Section 6.11(b) in the case of the Park Place Mall Loan and Section 6.11(e)) in the case of the Pointe West Loan, 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viiiix) with respect to the Park Place Mall Whole Loan (but without limiting the general applicability of the above requirements), any acceptance of a discounted payoff; (x) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and5,000,000 and with respect to the Park Place Mall Whole Loan (but without limiting the general applicability of the above requirements), any replacement of the property manager; (ixxi) with respect to the Park Place Mall Whole Loan (but without limiting the general applicability of the above requirements), any renewal or replacement of the then existing insurance policies to the extent that such renewal or replacement policy does not comply with the terms of the mortgage loan documents or any waiver, modification or amendment of any insurance requirements under the related mortgage loan documents; (xii) any termination of, or modification of, any all applicable franchise agreement agreements related to any Mortgage Loan secured by a hotel; (xiii) with respect to the Park Place Mall Whole Loan (but without limiting the general applicability of the above requirements), any approval of a material capital expenditure; (xiv) any determination to allow a borrower not to maintain terrorism insurance; (xv) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan; and (xvi) with respect to the Park Place Mall Whole Loan (but without limiting the general applicability of the above requirements), any adoption or approval of a plan in bankruptcy of the related Mortgagor. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph from the Controlling Class Representative or a Companion Holder, may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative Representative, Park Place Mall Representative, the holder of the Class MAD Certificates or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, claim suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Park Place Mall Representative, the Controlling Class, the holders of the Class and the Holder MAD Certificates, or any holder of any a Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Park Place Mall Representative, the Controlling Class, the holders of the Class and the Holder MAD Certificates, or any holder of any a Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Park Place Mall Representative, the Controlling Class Representatives or Representatives, the holders of the Class MAD Certificates, any Holder holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and Representative, any holder of a Companion Loan, the Holder of any Companion Loan the Class MAD Certificates and/or the Park Place Mall Representative may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or Representatives, any Holder holder of a Companion Loan Loan, the Holder of the Class PP Certificates, the Holder of the Class MAD Certificates and/or the Park Place Mall Representative may act solely in the interests of the Holders of the Controlling Class or Class, any holder of a Companion HolderLoan, as the case may be, and that the Controlling Class Representatives Representatives, the Holder of the Class PP Certificates and/or the Park Place Mall Representative do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class (or the Class MAD Certificates or the Class PP Certificates, as the case may be) or any holder of a Companion Holder Loan and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives Representatives, or any Holder holder of a Companion Loan, any Companion Loan holder of the Class MAD Certificates or the holders of the Class PP Certificates or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loansuntil an 00 Xxxxxxx Xxxxxx Control Appraisal Period shall have occurred and is continuing, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan Controlling Class Representative shall not have the right to consent or object to any replacement actions pursuant to Section 6.11(a) as described in the 2004-C10 Pooling and Servicing Agreement; provided, that if an 00 Xxxxxxx Xxxxxx Control Appraisal Period shall have occurred and is continuing, then the Controlling Class Representative, the 2004-C10 Controlling Class Representative and the other holders of the special servicer 11 Madison Avenue Pari Passu Companion Loans shall be entitled to take all actions under this Agreement with respect to the related Whole Loan00 Xxxxxxx Xxxxxx Loan that would otherwise be exercisable by the Controlling Class, Controlling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in accordance the 00 Xxxxxxx Xxxxxx Intercreditor Agreement and the 2004-C10 Pooling and Servicing Agreement; provided, however, nothing herein is intended to limit the Controlling Class Representative's right to consult with the terms of the related Intercreditor AgreementSpecial Servicer with respect to any Mortgage Loan. (d) Notwithstanding anything to the contrary in this Section 6.116.11 or anything contained in this Agreement (but subject to the Servicing Standards and the REMIC Provisions) and subject to the Park Place Mall Intercreditor Agreement, with respect to actions to be taken related to the Non-Serviced Mortgage Loans (other than Park Place Mall Whole Loan, if a Park Place Mall Control Appraisal Period shall not have occurred and be continuing, then the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans Park Place Mall Representative and the related Pari Passu Companion Loans Class PP Controlling Holder shall share in have all of the rights and responsibilities of the Park Place Mall Representative and the Controlling Class Representative herein as set forth in the related Park Place Mall Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect but subject to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative Servicing Standard and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this AgreementREMIC Provisions, with respect to the Los Angeles International Jewelry Center Pointe West Loan, the Master Servicer and or the Special Servicer Servicer, as applicable, shall comply with Section 3 16 of the Los Angeles International Jewelry Center related Intercreditor Agreement.Agreement with respect to any action to: (gi) Notwithstanding anything increase the interest rate or principal amount of the Pointe West Loan; (ii) increase in any other material respect any monetary obligations of the related Mortgagor under the Mortgage Loan documents; (iii) decrease, forgive, waive, release or defer the interest or the interest rate or principal amount of the related Companion Loan or forgive, waive, decrease, defer or release all or any portion of the related Companion Loan; (iv) shorten the scheduled maturity date of the Pointe West Loan; (v) increase the term of the related Companion Loan to a date occurring after the contrary maturity date of the Pointe West Loan; (vi) accept a grant of any lien on or security interest in this Section 6.11 any collateral or anything contained in this Agreement, property of the related Mortgagor or any other Person not originally granted under the related Mortgage Loan documents unless the same shall also secure the related Companion Loan; (vii) modify or amend the terms and provisions of any cash management agreement with respect to the Lembi Pool Loanmanner, timing and method of the Master Servicer application of payments under the related Mortgage Loan documents; (viii) cross-default the Pointe West Loan with any other indebtedness; (ix) obtain any contingent interest, additional interest or so-called "kicker" measured on the basis of the cash flow or appreciation of the related Mortgaged Property; (x) release the lien of the Mortgage securing the related Companion Loan (except in connection with a payment in full of the Pointe West Loan and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 related Companion Loan or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 a de minimis portion of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement.related Mortgaged Property as provided in the related Mortgage Loan documents); (ixi) Notwithstanding anything to spread the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 lien of the Xxxx Palms Apartments Intercreditor Agreement.related Mortgage to encumber additional real property unless the same shall also secure the Companion Loan; or (jxii) Notwithstanding anything to extend the contrary period during which voluntary prepayments are prohibited or impose any prepayment fee or premium or yield maintenance charge in this Section 6.11 or anything contained in this Agreement, connection with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 a prepayment of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to Pointe West Loan when none is required at the contrary in this Section 6.11 time Pointe West Loan is closed or anything contained in this Agreement, with respect to after the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 current maturity date of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything Pointe West Loan or increase the amount of such prepayment fee, premium or yield maintenance charge or otherwise modify any prepayment or defeasance provision in this Section 6.11a manner materially adverse the related Companion Holder; provided, however, nothing herein is intended to limit the right of the Controlling Class Representative Representative's right to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the One & Two International Place Loan, Section 6.11(d) in the case of the 450 West 33rd Street Loan and Section 6.11(e)) in the case of each of xxx xxxxx Xxxxxxxxx Loans, 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loansuntil a One & Two International Place Control Appraisal Period shall have occurred and be continuing, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan Controlling Class Representative shall not have the right to consent or object to any replacement of actions pursuant to Section 6.11(a); provided that if a One & Two International Place Control Appraisal Period shall have occurred and be continuing, then the special servicer Controlling Class Representative and the 2005-C17 Controlling Class Representative shall be entitled to take all actions under this Agreement with respect to the related Whole LoanOne & Two International Place Loan that would otherwise be exercisable by the Controlling Class, Controlling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in accordance with the terms of One & Two International Place Intercreditor Agreement and the related Intercreditor 2005-C17 Pooling and Servicing Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loansuntil a 450 West 33rd Street Control Appraisal Period shall have occurred and xx xxxxxxxxxx, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 xxx Controlling Class Representative shall be required not have the right to confer with the Controlling Class Representativeconsent or object to actions pursuant to Section 6.11(a); provided that if a 450 West 33rd Street Control Appraisal Period shall have occurred and xx xxxxxxxxxx, provided however, that in the event xxxx the Controlling Class Representative and the 20072005-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 C17 Controlling Class Representative shall controlbe entitled to take all actions under this Agreement with respect to the 450 West 33rd Street Loan that would otherwise be exercisable by the Xxxxxxxxxxx Xxxxx, Xontrolling Class Representative or the Majority Subordinate Certificateholder, pursuant to the procedures set forth in the 450 West 33rd Street Intercreditor Agreement and the 2005-C17 Pooling xxx Xxxxxxxxx Xxxxxment. (e) Notwithstanding any provision in this Agreement to the contrary, with respect to each Mezz Cap Intercreditor Agreement, the Master Servicer and/or the Special Servicer shall comply with Section 16 of each Mezz Cap Intercreditor Agreement. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, but subject to the Servicing Standard and the REMIC Provisions, with respect to each of the Mezz Cap Loans, the Master Servicer or the Special Servicer, as applicable, shall comply with Section 16 of the related Intercreditor Agreement with respect to any action to: (i) increase the interest rate or principal amount of the related Mezz Cap Loan; (ii) increase in any other material respect any monetary obligations of the related Mortgagor under the Mortgage Loan documents; (iii) decrease, forgive, waive, release or defer the interest or the interest rate or principal amount of the related Companion Loan or forgive, waive, decrease, defer or release all or any portion of the related Companion Loan; (iv) shorten the scheduled maturity date of the related Mezz Cap Loan; (v) increase the term of the related Companion Loan to a date occurring after the maturity date of the related Mezz Cap Loan; (vi) accept a grant of any lien on or security interest in any collateral or property of the related Mortgagor or any other Person not originally granted under the related Mortgage Loan documents unless the same shall also secure the related Companion Loan; (vii) modify or amend the terms and provisions of any cash management agreement with respect to the Los Angeles International Jewelry Center manner, timing and method of the application of payments under the related Mortgage Loan documents; (viii) cross-default the related Mezz Cap Loan with any other indebtedness; (ix) obtain any contingent interest, additional interest or so-called "kicker" measured on the basis of the cash flow or appreciation of the related Mortgaged Property; (x) release the lien of the Mortgage securing the related Companion Loan except in connection with a payment in full of the related Mezz Cap Loan and the related Companion Loan (or with respect to a de minimis portion of the related Mortgaged Property as provided in the related Mortgage Loan documents); (xi) spread the lien of the related Mortgage to encumber additional real property unless the same shall also secure the Companion Loan; or (xii) extend the period during which voluntary prepayments are prohibited or impose any prepayment fee or premium or yield maintenance charge in connection with a prepayment of the related Mezz Cap Loan when none is required at the time such Mezz Cap Loan was closed or after the maturity date of such Mezz Cap Loan, or increase the Master Servicer and amount of such prepayment fee, premium or yield maintenance charge or otherwise modify any prepayment or defeasance provision in a manner materially adverse the related Companion Holder; provided, however, nothing herein is intended to limit the Controlling Class Representative's right to consult with the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreementrespect to any Mortgage Loan. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C18)

The Controlling Class Representative. (a) Subject to Sections 6.11(c)Section 6.11(d) in the case of the 11 Madison Avenue Loan and Section 6.00(x) xx xxx xxxe of the Mountain View Apartments Loan and the Fox Valley Apartments Loan, 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; and (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotelLoan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class, the holders of the Class and the Holder MAD Certificates, or any holder of any a Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class, the holders of the Class and the Holder MAD Certificates, or any holder of any a Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Controlling Class Representatives or Representatives, the holders of the Class MAD Certificates, any Holder holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and Representative, any holder of a Companion Loan or the Holder of any Companion Loan the Class MAD Certificates may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or Representatives, any Holder holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or Class, any holder of a Companion HolderLoan, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class (or the Class MAD Certificates, as the case may be) or any holder of a Companion Holder Loan and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives Representatives, or any Holder holder of any a Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement.[RESERVED] (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative until an 11 Madison Avenue Control Appraisal Xxxxxx xxxxx xxxx occurred and is required to give its consent to any actions with respect theretocontinuing, the 2007-C30 Controlling Class Representative shall be required not have the right to confer with consent or object to actions pursuant to Section 6.11(a) as described in the 2004-C10 Pooling and Servicing Agreement; provided, that if an 11 Madison Avenue Control Appraisal Xxxxxx xxxxx xxxx occurred and is continuing, then the Controlling Class Representative, provided however, that in the event the 2004-C10 Controlling Class Representative and the 2007-C30 other holders of the 11 Madison Avenue Pari Passu Companion Loans shall be entitled to take all actions under this Agreement with respect to the 11 Madison Avenue Loan that would otxxxxxxx xx xxxxxxsable by the Controlling Class, Controlling Class Representative are not able or the Majority Subordinate Certificateholder, pursuant to agree upon a course of actionthe procedures set forth in the 11 Madison Avenue Intercreditor Agrexxxxx xxx xxx 0004-C10 Pooling and Servicing Agreement; provided, however, nothing herein is intended to limit the decision of the 2007-C30 Controlling Class Representative shall controlRepresentative's right to consult with the Special Servicer with respect to any Mortgage Loan. (fe) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect but subject to the Los Angeles International Jewelry Center Loan, the Master Servicer Servicing Standard and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this AgreementREMIC Provisions, with respect to the Lembi Pool Loan, the Master Servicer Mountain View Apartments Loan and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Fox Valley Apartments Loan, the Master Servicer and or the Special Servicer Servicer, as applicable, shall comply with Section 3 16 of the Xxxx Palms Apartments related Intercreditor Agreement.Agreement with respect to any action to: (ji) Notwithstanding anything increase the interest rate or principal amount of the Mountain View Apartments Loan or the Fox Valley Apartments Loan; (ii) increase in any other material respect any monetary obligations of the related Mortgagor under the Mortgage Loan documents; (iii) decrease, forgive, waive, release or defer the interest or the interest rate or principal amount of the related Companion Loan or forgive, waive, decrease, defer or release all or any portion of the related Companion Loan; (iv) shorten the scheduled maturity date of the Mountain View Apartments Loan or the Fox Valley Apartments Loan; (v) increase the term of the related Companion Loan to a date occurring after the contrary maturity date of the Mountain View Apartments Loan or the Fox Valley Apartments Loan, as applicable; (vi) accept a grant of any lien on or security interest in this Section 6.11 any collateral or anything contained in this Agreement, property of the related Mortgagor or any other Person not originally granted under the related Mortgage Loan documents unless the same shall also secure the related Companion Loan; (vii) modify or amend the terms and provisions of any cash management agreement with respect to the Quail Creek Loanmanner, timing and method of the Master Servicer application of payments under the related Mortgage Loan documents; (viii) cross-default the Mountain View Apartments Loan or the Fox Valley Apartments Loan with any other indebtedness; (ix) obtain any contingent interest, additional interest or so-called "kicker" measured on the basis of the cash flow or appreciation of the related Mortgaged Property; (x) release the lien of the Mortgage securing the related Companion Loan (except in connection with a payment in full of the Mountain View Apartments Loan or the Fox Valley Apartments Loan and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 related Companion Loan or anything contained in this Agreement, with respect to a de minimis portion of the Rancho Vista related Mortgaged Property as provided in the related Mortgage Loan documents); (xi) spread the lien of the related Mortgage to encumber additional real property unless the same shall also secure the Companion Loan; or (xii) extend the period during which voluntary prepayments are prohibited or impose any prepayment fee or premium or yield maintenance charge in connection with a prepayment of the Mountain View Apartments Loan or the Fox Valley Apartments Loan when none is required at the time the Mountain View Apartments Loan or the Fox Valley Apartments Loan, as applicable, is closed or after the Master Servicer and the Special Servicer shall comply with Section 3 current maturity date of the Rancho Vista Mountain View Apartments Intercreditor Agreement. (l) Notwithstanding anything Loan or the Fox Valley Apartments Loan, as applicable, or increase the amount of such prepayment fee, premium or yield maintenance charge or otherwise modify any prepayment or defeasance provision in this Section 6.11a manner materially adverse the related Companion Holder; provided, however, nothing herein is intended to limit the right of the Controlling Class Representative Representative's right to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C12)

The Controlling Class Representative. (a) Subject to Sections 6.11(c) in the case of the [__________] Loan and Section 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten [__] Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten [__] Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a borrower not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole [__________] Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 [__________] Controlling Class Representative shall control. (f) Notwithstanding anything be entitled to the contrary in take all actions under this Section 6.11 or anything contained in this Agreement, Agreement with respect to the Los Angeles International Jewelry Center Loan[__________] Loan that would otherwise be exercisable by the Controlling Class, Controlling Class Representative or the Master Servicer Majority Subordinate Certificateholder, pursuant to the procedures set forth in the [__________] Intercreditor Agreement and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor [__________] Pooling and Servicing Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (ld) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections 6.11(c)Section 6.12 of this Agreement and the terms of the [DEF] Co-Lender Agreement, 6.11(e)in the case of the [DEF] Loan Combination or any related REO Property, 6.11(f)and subject to Section 6.13 of this Agreement and the terms of the [GHI] Co-Lender Agreement, 6.11(g)in the case of the [GHI] Loan Combination or any related REO Property, 6.11(h)and subject to Section 6.14 of this Agreement, 6.11(i)in the case of the [ABC] Mortgage Loan or any related REO Property during a Class [XXX] Control Period, 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term (other than late payment charge and Default Interest provisions) of a Mortgage Loan (other than Loan, but excluding a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18)Fund) for less than the related Purchase Price; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any release of collateral, or acceptance of substitute or additional collateral or release of material collateral collateral, for a Mortgage Loan unless required by the underlying loan documentsrelated Mortgage Loan documents and/or applicable law; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause;; and (vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documentsDocuments); (viii) any termination ; provided that the foregoing rights of the Controlling Class Representative shall not relate to (w) the [DEF] Mortgage Loan or any related property manager for REO Property, regarding which the rights and powers of the specified Persons set forth under Section 6.12 are instead applicable, (x) the [GHI] Mortgage Loans having an outstanding principal balance Loan or any related REO Property, regarding which the rights and powers of greater than $5,000,000; and the specified Persons set forth under Section 6.13 are instead applicable, (ixy) the [ABC] Mortgage Loan or any termination ofrelated REO Property during a Class [XXX] Control Period, regarding which the rights and powers of the specified Persons set forth under Section 6.14 are instead applicable, or modification of, any applicable franchise agreement related to any (z) the Outside Serviced Mortgage Loan secured by a hotelor any related REO Property, regarding which the related Co-Lender Agreement and the Outside Servicing Agreement governs. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions (other than with respect to the [DEF] Loan Combination or any related REO Property, the [GHI] Loan Combination or any related REO Property, the [ABC] Mortgage Loan or any related REO Property or the Outside Serviced Loan Combination or any related REO Property) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph or Section 3.19(e), may (and the Master Servicer or Special Servicer, as applicable, shall disregard any such direction or objection that would) require or cause the Master Servicer or Special Servicer to violate any applicable law, any provision of this Agreement or any Mortgage Loan or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Provisions, including without limitation the Master Servicer's or Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer Master Servicer's or the Special Servicer’s 's responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer Servicer, as the case may be, is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will shall disregard any direction or objection of any party (including including, without limitation limitation, of the Controlling Class Representative or a Companion HolderRepresentative) if such direction and or and/or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or any Mortgage Loan or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent Fund or the Trustee or their respective Affiliates, officers, directors directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, Certificateholders or the holders of the Companion Loan and consistent is inconsistent with the Servicing Standard. (b) The Controlling Class RepresentativeRepresentative is hereby authorized to exercise the rights and powers of the holder of the Mortgage Note for the Outside Serviced Mortgage Loan, under Sections 2(d) and 20(b) of the related Co-Lender Agreement (and any corresponding provisions of the Outside Servicing Agreement), including for purposes of exercising, either individually or together with [MNO] Non-Mortgage Loan Noteholders, as the case may be, consent rights, consultation rights, rights to direct servicing and rights to replace the Outside Special Servicer. Promptly following the initial such appointment of a Controlling Class Representative and any subsequent such appointment of a successor Controlling Class Representative with respect to any Outside Serviced Mortgage Loan, the Trustee shall inform the Outside Servicers and the [MNO] Non-Mortgage Loan Noteholders (and from time to time shall ensure that such parties remain similarly informed) that the Controlling Class Representative is entitled, to the full extent permitted under the related Co-Lender Agreement, to exercise such rights and powers of the holder of the Mortgage Note for the Outside Serviced Mortgage Loan, under Sections 2(d) and 20(b) of the related Co-Lender Agreement (and any corresponding provisions of the Outside Servicing Agreement), and, further, the Trustee shall take such other actions as may be required under the related Co-Lender Agreement in order to permit the Controlling Class Representative to exercise such rights and powers. The Controlling Class Representative shall be subject to the same limitations, constraints and restrictions in exercising such rights and powers as would be applicable to the Trustee, in its capacity as holder of the Mortgage Note for the Outside Serviced Mortgage Loan. In addition, subject to Section 7.01(c) and each other section hereof that specifically addresses a particular matter with respect to the Outside Serviced Mortgage Loan, if the Trustee is requested to take any action in its capacity as holder of the Mortgage Note for the Outside Serviced Mortgage Loan, pursuant to the related Co-Lender Agreement and/or the Outside Servicing Agreement, then the Trustee will notify (in writing), and act in accordance with the instructions of, the Controlling Class Representative; provided that, if such instructions are not provided within the prescribed time period, then the Trustee, subject to Sections 8.01 and 8.02, shall take such action or inaction as it deems to be in the Holder best interests of the Certificateholders (as a collective whole) and shall have all rights and powers incident thereto; and provided, further, that the Trustee, with respect to the Outside Serviced Mortgage Loan or any Companion Loan related REO Property, (i) shall not be required to take any action that relates to directing or approving any servicing related action under the Outside Servicing Agreement or the related Co-Lender Agreement, to the extent that the Controlling Class Representative has been notified thereof and has failed to provide instructions with respect to such action within the prescribed time period, and (ii) shall not take any action that is not permitted under applicable law or the terms of the related Co-Lender Agreement or the Outside Servicing Agreement or any action that is, in the good faith, reasonable discretion of the Trustee, materially adverse to the interests of the Certificateholders (as a collective whole). (c) The Controlling Class Representative will not have no any liability to the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion Holderof Certificates, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class of Certificates, that the Controlling Class Representative will not be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Holders of the Controlling Class of Certificates, and that the Controlling Class Representative will not have any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)

The Controlling Class Representative. (a) Subject to Sections 6.11(c), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k6.11(d) and each Intercreditor Agreement, the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less); (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viii) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and (ix) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will may have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan may have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, pursuant to Section 2(l) of the Potomac Mills Intercreditor Agreement, any decision to be made with respect tx xxx Potomac Mills Loan that requires the approval of the Controlling Class Represxxxxxive under this Agreement shall be made by the holder of the Potomac Mills Pari Passu Companion Loan (or after the securitization of the Pxxxxxx Xxxls Pari Passu Companion Loan, the controlling class representative xx xxxx xecuritization) after consultation with the Controlling Class Representative. Notwithstanding anything to the 2007-C30 Serviced Mortgage Loanscontrary, in any such consultation by the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative non-binding and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision holder of the 2007-C30 Controlling Class Representative shall control. Potomac Mills Pari Passu Companion Loan (f) Notwithstanding anything to or after the contrary in this Section 6.11 or anything contained in this Agreement, with respect to securitization of the Los Angeles International Jewelry Center Pxxxxxx Xxxls Pari Passu Companion Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreementcontrolling class representative xx xxxx xecuritization) may disregard any suggestions at its sole discretion. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C33)

The Controlling Class Representative. (a) Subject to Sections 6.11(cSection 6.11(b), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special ServicerServicer with respect to the Trust Mortgage Loans and any REO Properties (other than the Kenwood Towne Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan and, in each case, any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply), and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a6.11(b), the Special Servicer will not be permitted to take (or permit the Master Servicer to take) any of the following actions with respect to the Trust Mortgage Loans and any REO Properties (other than the Kenwood Towne Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan and, in each case, any related Loan Combination REO Property, as to which the provisions of Section 6.12 shall apply) as to which the Controlling Class Representative has objected in writing within ten 10 Business Days of being notified in writing thereof, which notification with respect to the action described in clause clauses (vi) and (viii) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten 10 Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Trust Specially Serviced Mortgage Loans as come or have come into and continue in default; (ii) any modification or consent to a modification of a Money Term material term of a Trust Mortgage Loan (other than excluding the waiver of any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii) below), including the timing of payments or a modification consisting of the extension of the maturity date of a Trust Mortgage Loan for one year or less)Loan; (iii) any actual or proposed sale of an any Trust Defaulted Mortgage Loan or any REO Property (other than in connection with the termination of the Trust Fund or or, in the case of a Trust Defaulted Mortgage Loan, pursuant to Section 3.18)) for less than the Purchase Price of the subject Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable; (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material real property collateral for any Trust Mortgage Loan, other than (A) where the release is not conditioned upon obtaining the consent of the lender or certain specified conditions being satisfied, (B) upon satisfaction of that Trust Mortgage Loan, (C) in connection with a pending or threatened condemnation action or (D) in connection with a full or partial defeasance of that Trust Mortgage Loan unless required by the underlying loan documentsLoan; (vi) any waiver acceptance of a “due-on-sale” clause substitute or “due-on-encumbrance” clauseadditional real property collateral for any Trust Mortgage Loan (except where the acceptance of the substitute or additional collateral is not conditioned upon obtaining the consent of the lender, in which case only notice to the Controlling Class Representative will be required); (vii) any acceptance waiver of an assumption agreement releasing a Mortgagor from liability under a due-on-sale or due-on-encumbrance clause in any Trust Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents)Loan; (viii) any termination releases of earn-out reserves or related letters of credit with respect to a Mortgaged Property securing a Trust Mortgage Loan (other than where the release is not conditioned upon obtaining the consent of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; andlender, in which case only notice to the Controlling Class Representative will be required; (ix) any termination ofor replacement, or modification ofconsent to the termination or replacement, any applicable franchise agreement related of a property manager with respect to any Mortgaged Property or any termination or change, or consent to the termination or change, of the franchise for any Mortgaged Property operated as a hospitality property (other than where the action is not conditioned upon obtaining the consent of the lender, in which case only prior notice to the Controlling Class Representative will be required); (x) any determination that an insurance-related default in respect of a Trust Mortgage Loan secured is an Acceptable Insurance Default or that earthquake or terrorism insurance is not available at commercially reasonable rates; and (xi) any waiver of insurance required under the related Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated in clause (x) above); provided that, with respect to any Trust Mortgage Loan (other than a Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the Controlling Class Representative must object to any such action shall not exceed by a hotelmore than five Business Days the 10 Business Day period the Special Servicer has to object to the Master Servicer taking such action as set forth in Sections 3.02, 3.08 and 3.20. In addition, subject to Section 6.11(b), the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, any such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding herein. (b) Notwithstanding anything herein to the contrary contrary, no advice, direction or anything in this Agreement which permits objection given or made, or consent withheld, by the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special ServicerRepresentative, no such advice or direction, and no objection contemplated by the preceding paragraph Section 6.11(a) or any other section of this Agreement, may (i) require or cause the Master Servicer or the Special Servicer to violate any applicable law, the terms of any Trust Mortgage Loan, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection)Agreement, including without limitation the Master Servicer's or the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund Standard or the Trustee Mortgage Loan documents for any Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or their respective Affiliates, officers, directors, employees REMIC II or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to otherwise violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or result in an Adverse Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii) expose the Depositor, the Master Servicer, the Special Servicer, the Trust Fund, the Paying Trustee, any Fiscal Agent or the Trustee or any of their respective Affiliates, directors, officers, directors employees or agents agents, to any claim, suit or liabilityliability to which they would not otherwise be subject absent such advice, direction or objection or consent withheld, (iv) materially expand the scope of the Master Servicer’s 's or the Special Servicer’s responsibility 's responsibilities hereunder or (v) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in violates the reasonable judgment of the Servicing Standard. The Master Servicer or and the Special Servicer is shall disregard any action, direction or objection on the part of the Controlling Class Representative that would have any of the effects described in clauses (i) through (v) of the prior sentence. The Special Servicer shall not be obligated to seek approval from the Controlling Class Representative under Section 6.11(a) for any actions to be taken by the Special Servicer with respect to any particular Trust Specially Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the best interest first paragraph of Section 6.11(a), notified the Controlling Class Representative in writing of various actions that the Special Servicer proposes to take with respect to the work-out or liquidation of that Trust Specially Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the Controlling Class Representative has objected to all of the Certificateholders, or proposed actions and has failed to suggest any alternative actions that the holders of the Companion Loan and Special Servicer considers to be consistent with the Servicing Standard. (bc) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan Representative will have no duty or liability to the Certificateholders (other than the Controlling Class) for any action taken, or for refraining from the taking of any actionaction pursuant to this Agreement, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan Representative may act solely in the interests of the Holders of the Controlling Class or any Companion HolderClass, as the case may be, and that the Controlling Class Representatives do Representative does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Controlling Class or any Companion Holder and Representative shall have no liability whatsoever for by reason of its having so actedacted solely in the interests of the Holders of the Controlling Class, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan Representative or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect thereto, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision of the 2007-C30 Controlling Class Representative shall control. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)

The Controlling Class Representative. (a) Subject to Sections 6.11(c6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h), 6.11(i) and 6.11(j), 6.11(j) and 6.11(k) with respect to a Co-Lender Loan, the rights of the related Companion Holder pursuant to the applicable Intercreditor Agreement, the Controlling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a “due-on-sale” clause or “due-on-encumbrance” clause; (vii) any release of any performance or “earn-out” reserve escrows or letters of credit, including those listed on Exhibit J; (viii) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Mortgage Loan (other than in connection with a defeasance permitted under the terms of the applicable Mortgage Loan documents); (viiiix) any termination of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000; and; (ixx) any termination of, or modification of, any applicable franchise agreement related to any Mortgage Loan secured by a hotel; (xi) any determination to allow a Mortgagor not to maintain terrorism insurance; and (xii) any determination to decrease the time period referenced in clause (g) of the definition of Specially Serviced Mortgage Loan. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will have no liability to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class and the Holder of any Companion Loan will not be protected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative and the Holder of any Companion Loan may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or any Holder of a Companion Loan may act solely in the interests of the Holders of the Controlling Class or any Companion Holder, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class or any Companion Holder and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives or any Holder of any Companion Loan or any director, officer, employee, agent or principal thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage LoansCaplease Loan, the holder Master Servicer and the Special Servicer shall comply with Section 3 of the related Companion Loan will have the right to replace the special servicer with respect to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related Whole Loan, in accordance with the terms of the related Caplease Intercreditor Agreement. (d) Notwithstanding anything to the contrary in this Section 6.116.11 or anything contained in this Agreement, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx 2100 Rxxx Loan), the related holders Master Servicer and the Special Servicer shall comply with Section 3(f) of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement2100 Rxxx Intercreditor. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage Loans, in the event the 2007-C30 Controlling Class Representative is required to give its consent to any actions with respect theretoLlano Logistics Loan, the 2007-C30 Controlling Class Representative shall be required to confer with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative Master Servicer and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision Special Servicer shall comply with Sections 5(e) and 5(f) of the 2007-C30 Controlling Class Representative shall controlLlano Logistics Intercreditor Agreement. (f) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Los Angeles International Jewelry Center Glenbrooke at Palm Bay Loan, the Master Servicer and the Special Servicer shall comply with Sections 5(e) and 5(f) (subject to Section 3 19(c) thereof) of the Los Angeles International Jewelry Center Glenbrooke at Palm Bay Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Lembi Pool The Barrington Loan, the related Master Servicer and the related Special Servicer shall comply with Sections 5(e) and 5(f) (subject to Section 3 19(c) thereof) of the Lembi Pool The Barrington Intercreditor Agreement. (h) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Newforest Estates Loan, the Master Servicer and the Special Servicer shall comply with Sections 5(e) and 5(f) (subject to Section 3 19(c) thereof) of the 000 Xxxx 0xx Xxxxxx Newforest Estates Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)

The Controlling Class Representative. (a) Subject to Sections Section 6.11(c)) in the case of the 175 West Jackson Loan, 6.11(e)Section 6.11(d) in the case of the Coastal Graxx Xxxx Xxxx, Xxxxxxx 0.11(e) in the case of the 180 Maiden Lane Loan and Section 6.11(f)) in the case of the Mezz Cap Xxxxx, 6.11(g), 6.11(h), 6.11(i), 6.11(j) and 6.11(k) the Controlling xxx Xxxxrolling Class Representative will be entitled to advise the Special Servicer with respect to the following actions of the Special Servicer, and notwithstanding anything herein to the contrary except as necessary or advisable to avoid an Adverse REMIC Event or the violation of the Servicing Standard and except as set forth in, and in any event subject to, the second paragraph of this Section 6.11(a), the Special Servicer will not be permitted to take any of the following actions as to which the Controlling Class Representative has objected in writing within ten Business Days of being notified thereof, which notification with respect to the action described in clause (vi) below shall be copied by the Special Servicer to the Master Servicer (provided that that, if such written objection has not been received by the Special Servicer within such ten Business Day period, then the Controlling Class Representative’s 's approval will be deemed to have been given): (i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default; (ii) any modification of a Money Term of a Mortgage Loan (other than a modification consisting of the extension of the maturity date of a Mortgage Loan for one year or less)) or a material non-monetary term; (iii) any actual or proposed sale of an REO Property (other than in connection with the termination of the Trust Fund or pursuant to Section 3.18); (iv) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property; (v) any acceptance of substitute or additional collateral or release of material collateral for a Mortgage Loan unless required by the underlying loan documents; (vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance" clause; (vii) any release of any performance or "earn-out" reserves, escrows or letters of credit; (viii) any acceptance of an assumption agreement releasing a Mortgagor borrower from liability under a Mortgage Loan Loan; (other than in connection ix) with respect to the 175 West Jackson Whole Loan, any acceptance of a defeasance permitted under discounted payoff; (x) with respect to the 175 West Jackson Whole Loan, any renewal or replacement of the then exisxxxx xxsurance policies to the extent that such renewal or replacement policy does not comply with the terms of the applicable Mortgage Loan mortgage loan documents or any waiver, modification or amendment of any insurance requirements under the related mortgage loan documents); (viiixi) with respect to the 175 West Jackson Whole Loan, any termination approval of a material capital expenditxxx; (xii) with respect to the 175 West Jackson Whole Loan, any replacement of the related property manager for Mortgage Loans having an outstanding principal balance of greater than $5,000,000manager; andanx (ixxiii) any termination of, or modification ofwith respect to the 175 West Jackson Whole Loan, any applicable franchise agreement adoption or approval of a plan in bankrxxxxx xf the related Mortgagor. The foregoing rights with respect to the 175 West Jackson Whole Loan are in no way intended to, nor should thex xx xxxx xx, xxmit the generality of any Mortgage Loan secured by a hotelof the other clauses. In addition, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions as the Controlling Class Representative may deem advisable or as to which provision is otherwise made in this Agreement; provided that that, notwithstanding anything herein to the contrary or anything in this Agreement which permits the Controlling Class Representative or a Companion Holder the right to consent to or object to actions taken by the Special Servicer, no such advice or direction, and no objection contemplated by the preceding paragraph may require or cause the Special Servicer to violate any applicable law, any provision of this Agreement or the REMIC Provisions (and the Special Servicer shall disregard any such direction or objection), including without limitation the Special Servicer’s 's obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, or materially expand the scope of the Special Servicer or the Special Servicer’s 's responsibilities hereunder or cause the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders. For the avoidance of doubt, the Master Servicer and/or the Special Servicer will disregard any direction or objection of any party (including without limitation of the Controlling Class Representative or a Companion Holder) if such direction and or objection causes the Master Servicer or the Special Servicer to violate the Servicing Standard, any applicable law, any provision of this Agreement or the REMIC Provisions or expose the Master Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee or their respective Affiliates, officers, directors employees or agents to any claim, suit or liability, or materially expand the scope of the Master Servicer’s 's or Special Servicer’s 's responsibility hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interest of the Certificateholders, or the holders of the Companion Loan and consistent with the Servicing Standard. (b) The Controlling Class Representative, the Controlling Class, the Holder of the Class 175WJ Certificates, the Holders of the Class 180ML Certificates, the 175 West Jackson Representative and the Holder of any Companion Loan will have no liability xx xxxbility to the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Controlling Class Representative, the Controlling Class, the Holder of the Class 175WJ Certificates, the Holder of the Class 180ML Certificates, the 175 West Jackson Representative and the Holder of any Companion Loan will not be protected xx xxxxected against any liability to a Controlling Class Certificateholder which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations or duties. By its acceptance of a Certificate, each Certificateholder confirms its understanding that none of the Controlling Class, the Controlling Class Representatives or Representatives, the Holder of the Class 175WJ Certificates, the Holder of the Class 180ML Certificates, the 175 West Jackson Representative and any Holder of a Companion Loan may take actions that acxxxxx xhat favor the interests of one or more Classes of the Certificates over other Classes of the Certificates, and that the Controlling Class, the Controlling Class Representative, the Holders of the Class 175WJ Certificates, the Holders of the Class 180ML Certificates, the 175 West Jackson Representative and the any Holder of any a Companion Loan may have special relationships spxxxxx xelationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Controlling Class, the Controlling Class Representatives or Representatives, the Holders of the Class 175WJ Certificates, the Holders of the Class 180ML Certificates, the 175 West Jackson Representative and any Holder of a Companion Loan may act solely in solxxx xx the interests of the Holders of the Controlling Class or any a Companion HolderLoan, as the case may be, and that the Controlling Class Representatives do not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class (or the Class 175WJ or Class 180ML Certificates, as the case may be) or any Holder of a Companion Holder Loan and shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Controlling Class Representatives Representatives, or any Holder of any a Companion Loan Loan, the Holders of the Class 175WJ Certificates, the Holders of the Class 180ML Certificates and/or the 175 West Jackson Representative or any director, officer, employee, agent or principal pxxxxxxxl thereof for having so acted. (c) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement and subject to the 175 West Jackson Intercreditor Agreement, with respect to the Non-Serviced Mortgage Loans, the holder of the related Companion Loan will have the right actions to replace the special servicer with respect xx xxxxx xxxxxxx to the related Whole Loan in accordance with the terms of the related Intercreditor Agreement and the applicable Non-Serviced Mortgage Loan Pooling Agreement. In addition, the holders of the related Pari Passu Companion Loan have the right to consent to any replacement of the special servicer with respect to the related 175 West Jackson Whole Loan, in accordance with if a 175 West Jackson Control Appraisal Period shxxx xxx have occurred and xx xxxxxxxxxx, then the terms 175 West Jackson Representative and the Class 175WJ Controlling Holder shall hxxx xxx of the related Intercreditor Agreementrights and responsibilities, including, without limitation, the control rights, the information rights, the consultation rights and any other rights, of the Controlling Class Representative and the Controlling Class herein. (d) Notwithstanding anything to the contrary in this Section 6.11, with respect to the Non-Serviced Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan), the related holders of the Non-Serviced Mortgage Loans and the related Pari Passu Companion Loans shall share in the rights and responsibilities of the Controlling Class Representative as set forth in the related Intercreditor Agreement. (e) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the 2007-C30 Serviced Mortgage LoansCoastal Grand Mall Loan, for so long as there has not been a Threshold Event (as defined in the event Coastal Grand Mall Intercreditor Agreement) the 2007-C30 Controlling Class Representative is required to give its consent to any actions Master Servicer or the Special Servicer, as applicable, shall comply with Section 4(e) of the Coastal Grand Mall Intercreditor Agreement, including without limitation, with respect theretoto: (i) any foreclosure upon or comparable conversion (which may include the acquisition of an REO Property) of the ownership of the Mortgaged Property securing the Coastal Grand Mall Loan; (ii) any modification of a monetary term other than an extension of the original maturity date for two years or less of the Coastal Grand Mall Loan, including any acceptance of a discounted payoff; (iii) any release of collateral for the Coastal Grand Mall Loan (other than in accordance with the terms of, or upon satisfaction of, the 2007Coastal Grand Mall Loan); or (iv) any acceptance of an assumption agreement releasing the Mortgagor from liability under the Coastal Grand Mall Loan; and, the Master Servicer or the Special Servicer, as applicable, shall at all times comply with Section 4(f) of the related Intercreditor Agreement with respect to: (i) any modification of, or waiver with respect to, the Coastal Grand Mall Loan that would result in the extension of the maturity date or extended maturity date thereof, a reduction in the interest rate borne thereby or the monthly debt service payment or a deferral or a forgiveness of interest on or principal of the Coastal Grand Mall Loan or a modification or waiver of any other monetary term of the Coastal Grand Mall Loan relating to the timing or amount of any payment of principal or interest (other than Default Interest) or any other material sums due and payable under the related Mortgage Loan documents or a modification or waiver of any provision of the Coastal Grand Mall Loan which restricts the Mortgagor or its equity owners from incurring additional indebtedness; (ii) any modification of, or waiver with respect to, the Coastal Grand Mall Loan that would result in a discounted pay-C30 Controlling Class Representative shall be required off of the Coastal Grand Mall Loan; (iii) any foreclosure upon or comparable conversion of the ownership of the Mortgaged Property or any acquisition of the Mortgaged Property by deed-in-lieu of foreclosure; (iv) any proposed sale of REO Property that is related to confer the Coastal Grand Mall Loan (other than in connection with the Controlling Class Representative, provided however, that in the event the Controlling Class Representative and the 2007-C30 Controlling Class Representative are not able to agree upon a course of action, the decision termination of the 2007Trust Fund created pursuant to the terms of this Agreement) for less than the Purchase Price; (v) any determination to bring the Mortgaged Property securing the Coastal Grand Mall Loan into compliance with applicable environmental laws; (vi) any acceptance of substitute or additional collateral for the Coastal Grand Mall Loan (other than in accordance with the terms thereof); and (vii) any waiver of a "due-C30 Controlling Class Representative shall controlon-sale" or "due-on-encumbrance" clause. (fe) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement and subject to the 180 Maiden Lane Intercreditor Agreement, with respect to actions to bx xxxxx xxxxxxx to the Los Angeles International Jewelry Center 180 Maiden Lane Whole Loan, if an 180 Maiden Lane Control Appraisal Pxxxxx xxxxx xxx have occurred and xx xxxxxxxxxx, then (A) the Master Servicer and Controlling Class Representative shall not be authorized to exercise any of its rights of consent or direction as set forth in Section 6.11(a) with respect to the 180 Maiden Lane Whole Loan, (B) the Special Servicer shall comply be requirex (x) xx xxxxxxt with Section 3 the 180 Maiden Lane Controlling Holder (or the operating advisor appointex xxxxxxx) xx xonnection with (1) any adoption or implementation of a business plan (including without limitation, any operating expense budget or capital expense budget) submitted by the Los Angeles International Jewelry Center Intercreditor Agreement. (g) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, Mortgagor with respect to the Lembi Pool Loan, Mortgaged Property; (2) the Master Servicer and execution or renewal of any lease (if a lender approval is provided for in the Special Servicer shall comply applicable loan documents); (3) the release of any escrow held in conjunction with Section 3 of the Lembi Pool Intercreditor Agreement. (h) Notwithstanding anything 180 Maiden Lane Loan to the contrary Mortgagor not expressly required by the txxxx xx xxx xxxn documents (as defined under the 180 Maiden Lane Loan) or under applicable law; (4) alterations on the Xxxxxxxxx Xxxxerty if approval by the lender is required by the loan documents; (5) any material change in this Section 6.11 or anything contained in this Agreement, with respect to the 000 Xxxx 0xx Xxxxxx Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the 000 Xxxx 0xx Xxxxxx Intercreditor Agreement. (i) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Xxxx Palms Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Xxxx Palms Apartments Intercreditor Agreement. (j) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Quail Creek Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Quail Creek Intercreditor Agreement. (k) Notwithstanding anything to the contrary in this Section 6.11 or anything contained in this Agreement, with respect to the Rancho Vista Apartments Loan, the Master Servicer and the Special Servicer shall comply with Section 3 of the Rancho Vista Apartments Intercreditor Agreement. (l) Notwithstanding anything in this Section 6.11, nothing herein is intended to limit the right of the Controlling Class Representative to consult on a non-binding basis with the Special Servicer with respect to any Mortgage Loan, or special servicer with respect to any Non-Serviced Mortgage Loan.ancillary loan documents; or

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Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C15)